Defendant is charged by indictment with nine counts of possession of contraband (marijuana and pills), which were found in a vehicle the defendant was driving. He moved by motion dated June 10, 2016 to suppress the evidence seized from the vehicle, as having been the result of an illegal stop and subsequent search.

A combined Ingle/Mapp hearing was held on September 14, 2016. The People called Rochester Police Department Officers Matt Bennetti and Michael Magri. The defendant called one Kama Luangkhamdeng, the defendant's girlfriend.

What follows are the Court's Findings of Fact based on the evidence it deems credible, and its Conclusions of Law.

On 11/14/2015 at about 8:40 p.m., Officer Matt Bennetti was riding in a unmarked patrol vehicle with fellow officers Hartley and Rohr, when a particular vehicle came to his attention, a [*2]dark colored four door Acura sedan travelling northbound on North Clinton Avenue.

The vehicle was speeding in excess of 50 mph, weaving in and out of traffic, and crossing over into the opposite lane of traffic. Bennetti followed the vehicle as it pulled into a parking lot at the corner of North Clinton Avenue and Clifford Avenue, and Bennetti entered the lot and parked on the opposite side. He saw the driver of the Acura get out of his vehicle and walk over to speak with a female that was sitting in a vehicle already parked in the lot. In the exchange that ensued Bennetti witnessed the male hitting the female, punching her in the ribs and slapping her in the face.

The lot was lit, the business there (Chester's convenience store) was open, and Bennetti had a clear view of the interaction. He was able to see that the male was Hispanic, and approximately six feet, one inches tall, dressed in dark clothing.

The male eventually got back into the Acura and left the parking lot. Bennetti followed it to Ward Street east of St. Paul Street. Bennetti had by that time called for a marked patrol vehicle to make a stop, and he broadcast that the driver of the Acura was a male Hispanic, six feet tall, with dark clothing. Officers Cory Kleinman and Michael Magri in a marked patrol vehicle got behind the Acura and signaled it to stop. The Acura pulled over on St. Paul Street, and the officers pulled up alongside or right behind the Acura, close enough to read the license plate. The Acura abruptly pulled away, went around the corner onto St. Paul St., and stopped again. This time Magri got out of his vehicle, and as he was walking up to the Acura, it again sped off at a high rate of speed. A chase ensued, but because of traffic, the officers ended their pursuit before a stop could be made. The Acura was again spotted on Nox Alley by still other officers. Bennetti drove there, and while watching the now unoccupied Acura, a male came walking down the alley, got into the Acura and drove away. Bennetti could see the clothing of the male, but otherwise could not tell whether the male that got into the Acura was the same male previously seen driving it.

Officers Magri and Kleinman in the marked patrol vehicle and Bennetti in his vehicle followed the Acura as it proceeded westbound on Avenue E and then across the Driving Park Bridge. As the Acura was going across the bridge, it was followed by a vehicle driven by the defendant's girlfriend, Kama Luangkhamdeng. No vehicles were between the Acura and the vehicle driven by the girlfriend, and between the two vehicles was a sizeable gap. When the Acura stopped on Lake Avenue, so did the girlfriend, about fifteen to twenty feet behind the Acura.

Luangkhamdeng explained that she had been out to dinner with the defendant earlier in the evening and that after dinner they were intending to drive to her apartment in Irondequoit. En route the defendant received a text or call that he had to pick up his car. They drove to a place where they stopped behind a car, and the defendant got out and into the other car. The defendant drove off in his car and Luangkhamdeng followed in her car. She saw that the taillights on the Acura were working.

Magri and Kleinman effected a successful stop of the Acura as it proceeded across the bridge and turned north on Lake Avenue. The basis for the stop as per Magri was that the taillights were not working. Magri approached the driver side door and detected through the open window the smell of unburnt marijuana, a smell with which he was very familiar from training and experience. He then had the driver, identified as the defendant, step out of the vehicle. As Bennetti drove by the stopped vehicles, he noticed that the driver being taken out of the vehicle was not the same individual that he had seen at Clifford and Clinton Avenue, as the [*3]clothing was different, and he was much shorter, by at least a half of a foot.

A search of the vehicle yielded a number of pills in the pocket alongside the driver door and marijuana in a lunch-box type of metal container.

Although " 'a defendant who challenges the legality of a search and seizure has the burden of proving illegality, the People are nevertheless put to the burden of going forward to show the legality of the police conduct in the first instance' " (People v. Noah, 107 AD3d 1411, 1413 [4th Dept 2013], quoting People v. Lazcano, 66 AD3d 1474, 1475 [4th Dept 2009], lv denied 13 NY3d 940); see also People v. Berrios, 28 NY2d 361, 367—68 [1971]).

Here, defendant challenges both the legality of the search of vehicle and the initial stop of the vehicle that gave rise to the search.

The Court finds that the search of the vehicle, based upon Officer Magri's detection of the odor of unburnt marijuana, was in all respects reasonable and authorized. It is well established that "[t]he odor of marihuana emanating from a vehicle, when detected by an officer qualified by training and experience to recognize it, is sufficient to constitute probable cause" to search a vehicle and its occupants (see People v. Grimes, 133 AD3d 1201, 1202 [4th Dept 2015]). Officer Magri had sufficient training and experience to recognize the smell of marijuana, unburnt or otherwise.

A closer issue is whether the stop of the vehicle was authorized, based as it was on Officer Magri's observation that the vehicle's taillights were not working, which testimony was directly contradicted by the testimony of the defendant's girlfriend. If the stop was illegal, then the contraband seized from the vehicle would have to be suppressed as the "fruit of the poisonous tree." See Wong Sun, 371 U.S. at 485, 488.

It is well settled that a traffic stop is lawful where " 'a police officer has probable cause to believe that the driver of an automobile has committed a traffic violation' " (People v. Grimes, 133 AD3d 1201, 1202 [4th Dept 2015]), quoting People v Robinson, 97 NY2d 341, 349 [2001]; see Whren v United States, 517 US 806, 810 [1996]).

Here, the testimony of the officer and the defendant's girlfriend stand nearly (but not quite) in "equipoise" (see Matter of Jamie TT, 191 AD2d 132, 134 [3d Dept 1993]; United States v. Morris, 2007 WL 4351427, at 6 [ED NY 2007])

The girlfriend testified with no obvious contradiction, nervousness or hesitation. Asked whether the taillights on the defendant's vehicle were working, she unequivocally and unhesitatingly said yes, having had an opportunity to see them from the time she followed the vehicle as it left Nox Alley to the stop on Lake Avenue west of the Driving Park bridge.

Officer Magri testified that he noticed that the taillights on the vehicle weren't working as the vehicle was travelling on the bridge. However, no testimony was elicited that he saw the taillights out as he followed the vehicle as it drove down St. Paul Street, then in the direction of Nox Alley, then out of Nox Alley and onto Avenue E, and across the Driving Park Bridge. Also, his opportunity to even see the taillights as the vehicle travelled over the bridge was limited, as both the girlfriend's vehicle and a sizeable "gap" separated the Acura and Magri's vehicle.

Nor was any testimony as to the condition of the taillight elicited from Officer Bennetti, who tracked the vehicle from the time it was seen in the parking lot of Clinton Avenue where the driver exited and began beating a woman in another car, to its departure and travel to St. Paul St., where the driver exited and got back in, to the point on St. Paul St. where a stop was executed, and then down St. Paul in the direction of Nox Alley, and again as the vehicle went [*4]down Avenue E and over the bridge.

While both prosecution and defense witnesses gave generally credible testimony, the court is entitled to "selectively accept or reject portions of each witness's testimony" (People v. Hill, 110 AD3d 410, 410—11 [1st Dept 2013], especially as it relates to material issues, and on the issue of the accuracy of the observations as to whether the taillights were operable as the Acura drove over the bridge, the Court credits the testimony of the girlfriend. Accordingly the traffic infraction cannot be a basis for the stop.

Nor could the actions of the driver of the Acura earlier in the evening have been the basis for the stop.

Obviously the Acura could have been stopped before the drivers were switched out, based on the first driver having committed a number of traffic infractions as the officers followed, not to mention that the driver was seen committing an Assault or at the very least an Harassment with respect to the girl in the Chester's parking lot.

However, Officer Magri candidly admitted he could not make a positive identification of the person entering the Acura in Nox Alley as being the driver earlier in the evening, so that whatever he related to Magri about the second driver was hearsay that failed to satisfy the People's " ' . burden of establishing that the officer imparting the information had probable cause to act' " (People v. Robinson, 134 AD3d 1538, 1540 [4th Dept 2015]), quoting People v Ketcham, 93 NY2d 416, 420 [1999]; see People v Ramirez-Portoreal, 88 NY2d 99, 113-114 [1996]). The person driving the Acura earlier in the evening was seen to be over six feet tall and wearing dark clothing. Bennetti couldn't tell whether it was the same person or not, but he did know the person was wearing different colored clothing. On that basis, and by a preponderance of the evidence, the police lacked probable cause to believe that the driver of the Acura when stopped was the same person who earlier had driven the Acura while chased by police and who had beaten the woman in the parking lot.

Since the stop was not authorized, the fruits of the stop must be suppressed (see Wong Sun, 371 U.S. at 485, 488).

Accordingly, the motion to suppress contraband found in the vehicle is GRANTED.

This constitutes the Decision and Order of the Court.